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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 98
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P1867/04
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OPINION OF LORD KINCLAVEN
in the Petition of
DILAVER MRIJA
Petitioner;
against
THE SECRETARY OF
STATE FOR THE HOME DEPARTMENT
Respondent:
for Judicial Review
of a decision by the Adjudicator and a decision of the Immigration Appeal
Tribunal refusing permission to appeal under the Immigration and Asylum Act
1999
ญญญญญญญญญญญญญญญญญ________________
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Petitioner: Govier; Drummond Miller WS
Respondent: A. J. Carmichael; Office of the Solicitor to
the Advocate General
29 June 2006
Introduction
[1] This
is a petition for judicial review concerning an application by Mr Mrija for
asylum. His original application was
refused and an Adjudicator refused an appeal.
The Immigration Appeal Tribunal (the "IAT") subsequently refused permission
to appeal.
[2] The
Petitioner seeks inter alia reduction
of the determinations of the Adjudicator and of the Immigration Appeal
Tribunal.
[3] The
Respondent is the Secretary of State for the Home Department who is responsible
for the enforcement of immigration control throughout the United Kingdom.
[4] Having
heard counsel for the Petitioner and for the Respondent, I have decided to
dismiss the Petition for the reasons outlined below
The General Background
[5] The petitioner, who is a citizen of Albania,
arrived in the United Kingdom
accompanied by his wife Mihane and their two daughters on 12 June 2001 and claimed asylum on arrival. The respondent refused that application,
intimating his decision and his reasons for that decision in terms of his
letter dated 20 September 2001.
He issued directions to remove the
petitioner, and his wife and family, from the United
Kingdom. After sundry procedures, the Adjudicator in Glasgow
refused the petitioner's appeal against the issuing of removal directions in
terms of a determination dated 12 May
2003. The Adjudicator found
that the petitioner's removal from the United Kingdom would not cause it to be
in breach of its obligations under either of the 1951 Geneva Convention
relating to the Status of Refugees, as amended, ("the Convention"), 1951 or in
breach of the law or of its obligations under the 1950 Convention for the
Protection of Human Rights and Fundamental Freedoms ("the 1950 Convention").
[6] By determination dated 30 June 2003, the Immigration Appeal
Tribunal refused the petitioner permission to appeal against the Adjudicator's
determination.
[7] The determination of the adjudicator
being dated prior to 9 June 2003,
the provisions of section 101(2) of the Nationality, Immigration and Asylum Act
2002 do not apply in this case.
The Adjudicator's
Determination
[8] As the parties are familiar with the productions
I do not propose to rehearse the full terms of the Adjudicator's Determination
(Production No. 6/2 of Process).
[9] Some of parts of the Adjudicator's determination
are not directly relevant to this petition and other parts are mentioned below. It may suffice to note the following passages
from his determination at this stage.
[10] The
Adjudicator states (in paragraph 33) that:-
"Given
the Appellant's past experiences there can be no question in my view of his
returning to his home area. He has been
subjected to a catalogue of abuse there at the hands of the local police. He has complained about their conduct and
that has not had any effect. That
however is not an end of the matter. The
next question to consider is whether the Appellant would be at risk of
ill-treatment amounting to persecution or a breach of Article 3 throughout Albania."
[11] The Adjudicator also states (at page 9 of
his determination):-
"38.
When I come to consider all of the evidence in the round l reach the
conclusion that were the Appellant to move elsewhere within Albania he would
find that he could pursue his political activities without there being any real
risk of his being subjected to ill-treatment by local police. Further, he would find there a sufficiency of
protection for him and his family should he or his family again be threatened
by political opponents. Sufficiency of
protection is a practical test. No state
can guarantee the safety of its citizens. It appears to me on the evidence viewed in the
round that the Albanian state has the ability to offer the Appellant and his
family a standard of protection which can properly be characterised as
sufficient and, leaving aside the Appellant's home area and his unfortunate
experiences there, would be willing to provide the Appellant and his family
with that protection now.
39.
This of course would involve the Appellant in relocating along with his
family. The Appellant and his family successfully
relocated to Durres. There really is nothing in the evidence to my
mind which would justify the conclusion that it would be unduly harsh to expect
the Appellant and his family to relocate to an area where the police force act
in a proper and acceptable manner.
40.
Relocation to an area where there exists a sufficiency of protection for
the Appellant provides the answer to any claim the Appellant may have under the
Refugee Convention or ... Article 3 of the Human Rights Convention. ..."
[12] In the result, the Adjudicator dismissed
the appeal on asylum grounds.
[13] He also dismissed the appeal on human
rights grounds.
The
Application to the IAT for Leave to Appeal
[14] The
Application to the Immigration Appeal Tribunal for Leave to Appeal is No 6/3 of
Process.
[15] The
Appellant sought permission to appeal (in paragraph 2) "on the basis that the
Adjudicator has misdirected himself in law and as such his decision falls to be
reduced."
[16] Paragraph
3 of the Application was in the following terms:-
"Specifically
the Adjudicator rejected the Appellant's claim because he concludes, at
paragraph 38, that if he moved elsewhere within Albania there would not be any
real risk of his being subjected to ill treatment by the local police. It is respectfully submitted that the Adjudicator
has erred in arriving at this conclusion.
In the unfortunate circumstances of this particular case it is
respectfully submitted that it would be unduly harsh to expect the Appellant and
his family to re-locate elsewhere in Albania.
Specifically the Adjudicator should have borne in mind the fact that when
the Appellant lived in Durres he and his family remained indoors and remained effectively in
hiding. He also required to consider the
detrimental effect that returning to Albania would have on the health of the Appellant,
his family and particularly his daughter Lejdisa. It is respectfully submitted that these
factors, in the peculiar circumstances of this case, make it unduly harsh for
the family to relocate."
[17] Further
and separately (in paragraph 4) the Appellant submitted that it would be a
breach of Article 3 for the Appellant's daughter Lejdisa to be returned to Albania.
[18] Finally
(in paragraph 5) it was submitted that the Adjudicator's decision ought to be
set aside and the appeal allowed on both asylum and human rights grounds.
The
Determination by the IAT of the Application for Leave to Appeal
[19] The Determination (by the Immigration Appeal Tribunal) of the
Application for Leave to Appeal is produced as No. 6/4 of Process. The application was before HH Judge N
Ainley.
[20] Permission
to appeal was refused.
[21] The
reasons for the decision of the Immigration Appeal Tribunal were as follows:-
"The
grounds of appeal centre on an assertion that it would be unduly harsh for the
family to have to settle elsewhere than their home area in Albania. On
the facts found by the adjudicator, and I can see no obvious error in the way
he set about assessing the facts in this case, it would be a watering down of
the concept of undue hardship as developed in e.g. Karanakaran to hold that the real difficulties which this family
would face on return would be as severe as to cross that threshold.
Likewise
with the Art. 3 claim. There will be considerable difficulties for his daughter,
and thus him, to face on return but in my judgment they do not even arguably
amount to a breach of Art. 3. This
appeal has no real prospect of success."
The
Productions
[22] The
productions lodged in the present petition process were as follows:-
6/1 Letter from Immigration and Nationality
Directorate, Home Office, to the
Petitioner, dated 20 September 2001.
6/2 Adjudicator's determination, dated 12 May
2003.
6/3 Grounds of Appeal lodged when leave to
appeal the determination of the
Adjudicator was sought, undated.
6/4 IAT's determination, dated 30 June
2003.
6/5 Map of Albania.
6/6 Copy Certificate of Legal Aid.
6/7 CIPU Report October 2002 i.e. Republic of Albania, Country Assessment, October 2002,
produced by the Country Information and Policy
Unit ("CIPU"), Immigration & Nationality Directorate, Home Office.
[23] During
the course of submissions I was referred to virtually the whole of the Home
Office letter dated 20 September 2001 (No. 6/1).
[24] I
was referred to particular parts of the Adjudicator's determination (No. 6/2)
and in particular paragraphs 8 to 21 inclusive, and paragraphs 29 to 44
inclusive.
[25] I
was also referred to the whole of the Grounds of Appeal and the IAT's
determination (Nos. 6/3 and 6/4).
[26] The
map (No. 6/5) was also referred to highlight the locations of Librazhd and Durres and, roughly between the two, Tirane. Mr
Govier informed me that the map had been before the Adjudicator.
[27] The
CIPU assessment (No 6/7) was also mentioned.
I was also informed that this assessment had been before the
Adjudicator.
The Submissions for the Petitioner
[28] Against
that background, Mr Govier, counsel for the petitioner, invited me to sustain
the Petitioner's plea-in-law, as amended, which was in the following terms:-
"The
determinations of the Adjudicator and of the Immigration Appeal Tribunal being
unlawful and in breach of procedural fairness and unreasonable, as condescended
upon, they should be reduced as sought in Paragraph 3 ... " (of the petition).
[29] In
paragraph 3 of the Petition, as amended, the petitioner seeks: ‑
(a) reduction of the determinations of the
Adjudicator and of the Immigration Appeal Tribunal;
(b) the expenses of this petition, and
(c) such other orders as to the Court shall seem
just and reasonable in all the circumstances of the case.
[30] Essentially,
Mr Govier made three submissions, the first two of which were set out in the
Petition, namely:-
(1) that the adjudicator's determination was
unfair as the Petitioner was not given notice that the issue of internal
relocation was to be raised at the hearing before the Adjudicator and the
Petitioner's evidence was not lead on that issue (paragraph 6 of the Petition);
(2) that the Adjudicator's determination was
unlawful in that he failed to take into account the flight of the Petitioner
and his family to Durres (paragraph 7 of the Petition); and
(3) that the determination of the Adjudicator was
unreasonable in that he failed to give adequate reasons for his decision that
relocation was available to the Petitioner and his family.
[31] Mr
Govier accepted that the points he sought to address were not all raised in the
application for permission to appeal but he suggested that the IAT would
readily have been able to identity those points. His third submission about inadequate reasons was
new but, he suggested, it arises out of the other two. He submitted that the IAT should have granted
permission to appeal.
[32] The
structure of the Petition is broadly as follows. The factual background is set out in paragraph 5 of the Petition. The first ground of review is set out in
paragraph 6 of the Petition. The second
ground of review is set out in paragraph 7 of the Petition. I shall deal with each of those matters in
turn.
[33] The
Petitioner sets out the factual background in paragraph 5 of the Petition. It is averred that the petitioner became a
member of the Democratic Party in Albania in 1990. The party won the national elections in the
country in March 1992. He became the
president of a local branch of the party in November of that year. While the Democratic Party was in power, the
petitioner was subjected to attacks and threats by supporters of the Socialist
Party, from whom the Democratic Party had gained power at those elections. In 1997, amid great civil unrest, the
Democratic Party government resigned. The
Socialist Party won the ensuing elections. Subsequently, the petitioner's home which was
in the Librazhd area was raided on a number of occasions by police. He himself was on several occasions detained
and beaten up while in police custody. On one occasion, he was stopped by the police.
When he tried to run away from them, he
was shot. As a result he required to
have one of his fingers amputated. He
was threatened with death by the police if he did not resign from the
Democratic Party. This harassment and
mal-treatment continued until 2000. In September of that year, his daughter
Lejdisa, who was then about 9 years old, was kidnapped. She was released after being told to tell her
father that he should stop his political activities and leave the Librazhd
area. He did so almost immediately. He went with his wife and family to live with
a friend of his in the town of Durres. He
did not involve himself in significant political activity while living there. About three months later, the petitioner
received an anonymous letter at the house in Durres threatening him. He decided that he and his family had to leave
Albania to ensure their safety. They did so and subsequently arrived in the United Kingdom as above narrated.
[34] The
first ground of review is set out in paragraph 6 of the Petition. There it is averred that the determination of
the adjudicator was unlawful and in breach of procedural fairness. It is also averred that the Immigration Appeal
Tribunal, in failing to identify these faults in the adjudicator's
determination and to grant permission to appeal, itself acted unlawfully. The determination of the Immigration Appeal
Tribunal should therefore be reduced. In
particular, the determination of the adjudicator was unfair. The appeal to the adjudicator followed upon
the decision of the respondent to refuse the petitioner's application for
asylum in terms of his letter of 20 September 2001 and the consequent issuing of directions to
remove the petitioner, and his wife and family, from the United Kingdom to Albania. In
the said letter, the respondent concluded that the petitioner, as applicant to
him, had not "established a well-founded fear of persecution and that [he did]
not qualify for asylum". No issue of the
possibility of' the internal relocation of the petitioner and his family to a
safe area of Albania was raised in the said letter. That
issue was not raised until, at the earliest, the hearing before the adjudicator
had commenced. The petitioner had no
notice that the issue of possible internal relocation would be raised at the
hearing. The adjudicator found that " ... were
the Appellant to move elsewhere within Albania he would find that he could
pursue his political activities without there being any real risk of his being
subjected to ill-treatment by the local police" (para. 38). He also found that there was " ... nothing in the evidence ... which would justify
the conclusion that it would be unduly harsh to expect the Appellant and his
family to relocate to an area where the police force act in a proper and
acceptable manner" (para. 39)(italics added). He concluded: "Relocation to an area where
there exists a sufficiency of protection for the Appellant provides the answer
to any claim the Appellant may have under the [1951] Convention ... or Article 3
of the [1950] Convention" (para. 40). He
accordingly, on the basis of findings of fact relative to conditions in Albania, dismissed the petitioner's appeals, other than
one ground of appeal not relevant to the present argument. The petitioner not having been given notice
prior to the commencement of the hearing before the adjudicator that the issue
of possible internal relocation was to be raised at that hearing, and
accordingly not having sought to obtain and adduce at that hearing evidence
relative to that issue, and the determination of the adjudicator being based on
evidence of that issue adduced by the respondent, that determination was unfair
and lacking in procedural propriety.
[35] Mr
Govier accepted that the original decision to refuse was on the basis that the
Secretary of State had rejected the claim that the Petitioner had a well
founded fear of persecution. However, he
submitted that the question of internal flight or relocation might have been
addressed by the Home Office on an esto
basis and there was no mention of internal flight or relocation in the letter
dated 20 September 2001 (No 6/1).
[36] The
second ground of review is set out in paragraph 7 of the Petition. There it is averred that the determination of
the adjudicator was unlawful in that it did not take into account all relevant
and material considerations. In
particular, the adjudicator accepts that " ... for the most part [excepting
certain matters which are not relevant to the instant proceedings], the
Appellant has been truthful" (para. 32) and "[g]iven the Appellant's past
experiences there can be no question in my view of his returning to his home
area. He has been subjected to a
catalogue of abuse there at the hands of the local police" (para. 33). He noted that to find safety in Albania, the petitioner and his family went to Durres "which is some distance from his home area"
and where "he was not involved in significant political activity" (para 35). He does not criticise the choice of Durres as a safe haven as being made in bad faith
by the petitioner. After living in Durres for about three months, the petitioner
received a threatening letter, which resulted in him deciding "he had to leave Albania" (para. 16). Nevertheless, the adjudicator concluded that "were
the Appellant to move elsewhere within Albania he would find that he could
pursue his political activities without there being any real risk of his being
subjected to ill-treatment by the local police" (para. 38). In moving to Durres, the petitioner had already attempted to
seek protection by that means, and had, in terms of the finding of the
adjudicator, failed. The adjudicator
having failed to take into account a relevant and material consideration, his
determination was unlawful.
[37] Mr
Govier's third submission was to the effect that, in the circumstances, the
adjudicator's reason were inadequate
[38] Mr
Govier expanded upon his averments during the hearing under references to the
productions as mentioned above.
[39] Mr
Govier's list of authorities included: - Saleh
Habib Aziz v SSHD [2003] EWCACiv
118 (and in particular at paragraphs 2, 3, 9, 10, 23 to 26 and 28); Jaswinder Singh v SSHD, IAT Appeal No. G0094, 10 June 1999 (at paragraphs 1, and 4
to 6); DD v SSHD [2005] CSIH 37 (in full); Rabbani
v Canada (Minister of Citizenship and
Immigration) IMM-236-96, 16 January 1997; Syme and Jorro, Asylum Law and Practice, (2003);
Macdonald, Immigration Law and Practice,
(5th Ed., 2001); and Wordie Property
Co. Ltd v Secretary of State for
Scotland 1984 SLT 345. The Opinion
of the Court in Jaswinder Singh v SHHD, dated 4 December 1998, was also produced to set the IAT decision
(referred to above) in context.
[40] For
the reasons outlined above, Mr Govier invited me to sustain the Petitioner's
plea-in-law.
The Submissions for the Respondent
[41] Ms
Carmichael, for the Respondent, invited me to dismiss the petition.
[42] There
was a preliminary hurdle which affected all the Petitioner's submissions namely
that the issues now being raised were not the issues which were before the Immigration
Appeal Tribunal. That gives rise to a
difficulty for the Petitioner under the Immigration and Asylum Appeals (Procedure)
Rules 2003 (SI 2003/652) mentioned below.
The Petitioner can only rely on "obvious" points.
[43] Further,
there are no averments in the Petition to support a submission based on alleged
inadequacy of reasons. That is a new
matter.
[44] Further,
the Petitioner's complaints were not sufficiently focused or specific.
[45] In
any event:-
(1) there was no procedural
unfairness,
(2) the move to Duress was taken
into account, and
(3) the Adjudicator's reasons
were adequate.
[46] Ms
Carmichael responded to the Petitioner's allegations as follows.
[47] In
Answer to the first ground of review, the Respondent avers (in Answer 6) that in
order to obtain protection under the 1951 Convention, the petitioner required
to demonstrate that he was, by reason of well-founded fear of persecution for
the specified reasons, outside the country of his nationality, and was unable
or unwilling to avail himself of the protection of that country. The petitioner required to satisfy the
adjudicator that he was unable to avail himself of such protection throughout Albania, and not merely in the region from
which he had come. There was no need for
the question of internal relocation to be raised in the respondent's letter, as
the respondent had concluded that the petitioner did not have a well-founded fear
of persecution. The respondent's
representative made submissions concerning internal relocation at the hearing
before the adjudicator, and the petitioner's solicitor responded to those
submissions. Reference was made to
paragraphs 20 and 21 of the adjudicator's determination. The petitioner was represented by a solicitor. The solicitor made no motion to adjourn in
order to consider the position regarding internal relocation or in order to
seek to obtain further evidence on the point. There is no indication that there was any
difficulty for the petitioner's solicitor in making submissions as to internal
relocation. The proceedings before the
adjudicator were not procedurally unfair or improper.
[48] Further
and in any event, the Responded avers, the application for leave to appeal to
the Immigration Appeal Tribunal included no ground of appeal to the effect that
the proceedings before the adjudicator were procedurally unfair or improper. Reference was made to Rule 18(2) of the
Immigration and Asylum Appeals (Procedure) Rules 2003 (SI 2003/652). That the proceedings were procedurally unfair
was not a point which ought to have been obvious to the Immigration Appeal
Tribunal in the absence of a ground of appeal to that effect before it in the
application for leave to appeal. Reference
was made in particular to R v SSHD ex p Robinson [1998] QB 929; Mutas Elabas v SSHD 2 July 2004, per Lord Reed at paragraphs 21-23.
[49] In
answer to the second ground of review, the Respondent avers (in Answer 7) that the
adjudicator took into account the petitioner's evidence as to his relocation in
Durres. Reference was made to paragraphs 16, 35 and 39
of the adjudicator's determination. The
adjudicator noted that (in contrast to the persecution which the petitioner had
suffered in the Libazhd area) he did not suggest that he suffered any form of
ill-treatment at the hands of the police in Durres. The
adjudicator took that matter into account. He concluded, as he was entitled to do on the
evidence, that were the petitioner to relocate within Albania, he would be able to pursue his political
activities without a real risk of ill-treatment from the local police. He concluded that there would he a sufficiency
of protection should he or his family be threatened by political opponents.
[50] The
adjudicator's reasons and those of the IAT were, it was submitted, adequate.
[51] Ms
Carmichael also expanded upon the respondent's answers during the course of her
submissions under reference to the productions mentioned above.
[52] Ms
Carmichael referred me to the Immigration and Asylum Appeals (Procedure) Rules
2003 (SI 2003/652). She also referred to
the following authorities: - R v SSHD ex p Robinson [1998] QB929 (and in
particular at page 945 and 946); Mutas
Elabas v SSHD, Lord Reed, 2 July
2004 (paragraphs [21] to [23]); Karanakaran
v SSHD [2000] 3All ER 449; Mehmet Koca v SSHD [2005] CSIH 37, Daljit
Singh v SHHD 2000 SC 219 (and in
particular at page 222), Jasvir Singh v SHHD, First Division, Inner House, 1
August 2001 (and in particular at paragraph [10]) and Horvath v SSHD [2001] 1AC 489.
[53] It
was submitted that the cases relied upon by the Petitioner could be
distinguished on their facts.
[54] Ms
Carmichael highlighted the judgment of Lord Justice Dyson in Saleh Habib Aziz v SSHD [2003] EWCACiv 118 (at paragraphs 23 to 26 and 28).
[55] DD v
SSHD [2005] CSIH 37 proceeded on a concession. The Respondent withdrew opposition.
[56] Rabbani v Canada
(Minister of Citizenship and Immigration) IMM-236-96, 16 January 1997was very brief and was not helpful.
[57] In
the present case the question to relocation was raised and was dealt with and there
was no motion to adjourn.
[58] The
petitioner may not like the factual conclusions reached by the Adjudicator but
that is not sufficient.
[59] It
is for the Petitioner to make out his case and he has failed to do so.
The
Immigration and Asylum Appeals (Procedure) Rules 2003
[60] Rule
18 of the Immigration and Asylum Appeals (Procedure) Rules 2003 (SI 2003 No.
652 (L.16)) was specifically referred to by counsel.
[61] Rule
18 provides inter alia as follows:-
"
... (2) The Tribunal is not required to
consider any grounds of appeal other than those included in the application.
(3) The Tribunal may grant or refuse permission
to appeal.
(4) The Tribunal may grant permission to appeal
only if it is satisfied that -
(a) the appeal would have a real prospect of
success; or
(b) there is some other compelling reason why the
appeal should be heard."
Discussion
[62] It
will deal firstly with the question of procedural unfairness (paragraph 6 of
the Petition). I will then deal with the
question of unreasonableness in the sense of failure to take into account all
relevant and material considerations (paragraph 7 of the Petition) before
turning to the question of inadequacy of reasons.
Procedural
unfairness?
[63] In
the whole circumstances of this particular case, I am satisfied that the
Petitioner's ground of review relating to alleged procedural unfairness must
fail.
[64] The
Respondent has raised a preliminary issue in relation to the first ground of
review. There was no ground of appeal
based on procedural unfairness included in the application to the IAT for
permission to appeal.
[65] Rule
18(2) of the Immigration and Asylum Appeals (Procedure) Rules 2003 provides
that the Tribunal is not required to consider any grounds of appeal other than
those included in the application.
[66] Rule
18(4) also provides that The Tribunal may grant permission to appeal only if it
is satisfied that - (a) the appeal would
have a real prospect of success; or (b)
there is some other compelling reason why the appeal should be heard.
[67] In R v
SSHD Ex parte Robinson [1998] QB 929 Lord Woolf MR stated inter alia (at page 946 / paragraph 39):
"It
follows that leave to apply for judicial review of a refusal by the tribunal to
grant leave to appeal should be granted if the judge is of the opinion that it
is properly arguable that a point not raised in the grounds of appeal to the
tribunal had a strong prospect of success if leave to appeal were to be
granted."
[68] It
is instructive to bear in mind the Opinion of Lord Reed in the case of the Mutas Elabas, Petitioner dated 2 July
2004 (especially at
paragraphs 14, 21, 22 and 23). In
relation to R v SSHD Ex parte Robinson [1998] QB 929 Lord Reed states in paragraph
21:
"It
appears from that decision, therefore, that the tribunal is not required to
engage in a search for points of law which are not raised in the grounds of
appeal. It is on the other hand not
limited by the arguments advanced, and should grant leave to appeal of it
discerns a point of Convention law which has a strong prospect of success if it
is argued."
[69] At
paragraph 23 Lord Reed continues as follows:
"It is however important to bear in
mind that obviousness is emphasised in both Ex parte Robinson and Ex
parte Kolcak. As Lord Penrose
observed in Parminder Singh v
Secretary of State for the Home Department, 10 July 1998 (unreported):
'Whatever else this indicates, it is
clear that there is and can be no duty to pursue each and every hypothesis that
could be postulated in the search for possible grounds for support of an appeal
which may have escaped the notice of the appellant's advisers.'
In the same case, Lord Penrose also
said:
'It seems to me that in considering
whether the IAT has erred in relation to matters of fact, or to inferences
properly to be drawn from facts and circumstances, one is concerned only with
the clear, the obvious, with questions that cry out for answer.'
I respectfully agree with those
observations, which reflect the limited nature of the court's supervisory
jurisdiction over the tribunal. Although
counsel for the petitioner in the present case understandably emphasised the
need for 'anxious scrutiny', it is necessary to remember that the court's
jurisdiction to interfere with the decisions of adjudicators or of the tribunal
is based on the same fundamental principles as apply in other areas of
administrative responsibility. Although
the tribunal is not restricted by Wednesbury principles in considering
whether to entertain an appeal, the court has to apply those principles in
deciding whether to interfere with the tribunal's decision."
[70] In
the circumstances of the present case, and for the reasons outlined by the
Respondent, I am not satisfied that The Immigration Appeal Tribunal should have
concluded that (a) the appeal would have
a real prospect of success; or (b) there
is some other compelling reason why the appeal should be heard.
[71] The
onus is on the petitioner to establish his case albeit that the standard of
proof to be applied is the lower one appropriate to asylum cases as set out in Karanakaran [2000] Imm AR 271
(especially at pages 302 and 303).
[72] In
order to obtain protection under the 1951 Convention, the petitioner required
to demonstrate that he was, by reason of well-founded fear of persecution for
the specified reasons, outside the country of his nationality, and was unable
or unwilling to avail himself of the protection of that country. It was for the Petitioner to satisfy the
adjudicator that he was unable to avail himself of such protection in Albania.
There was no need, in my view, for the question of internal relocation
to be raised in the respondent's letter.
The question of internal relocation was put in issue by the Petitioner. It was part of his account. The account which he gave to the Adjudicator
included his move to Durres.
At the hearing, his solicitor responded to submissions concerning
internal relocation. Submissions were
made in relation to internal flight.
They are referred to in paragraphs 20 and 21 of the adjudicator's
determination. There was no motion to
adjourn. In my view, in those
circumstances, the facts of the present case fall to be distinguished from the
cases relied upon by the petitioner.
[73] I
am not satisfied that there was any material procedural unfairness or
impropriety by the Adjudicator or by the Immigration Appeal Tribunal. That in itself is a sufficient answer to the
Petitioner's first ground of review.
[74] Further
and in any event, in my view, the preliminary issue raised by the Respondent is
also fatal to the Petitioner's first ground of review.
[75] The
Respondent's submissions fall to be preferred.
Unreasonableness?
[76] In
relation to the second ground of review, alleged unreasonableness, I am not
satisfied that the Immigration Appeal Tribunal should have concluded that
(a) the appeal would have a real
prospect of success; or (b) there is
some other compelling reason why the appeal should be heard.
[77] On
a fair reading to his determination, the adjudicator did have regard to the
petitioner's account relating to relocation (see for example paragraphs 16, 29,
35, 38 and 39). I can detect no material
error in his approach. He reached a
different conclusion from the one suggested by the Petitioner but that is a
different matter.
[78] The
Adjudicator concluded (in paragraph 38) that, were the petitioner to relocate
within Albania, he would find that he could pursue his political activities
without there being any real risk of his being subjected to ill-treatment from
the local police. Further the Petitioner
would find there a sufficiency of protection for him and his family should he
or his family again be threatened by political opponents.
[79] The
Adjudicator concluded (in paragraph 39) that:-
"The
Appellant and his family successfully located to Durres."
[80] He
found that there really is nothing in the evidence to his mind which
would justify the conclusion that it would be unduly harsh to expect the
Appellant and his family to relocate to an area where the police force act in a
proper and acceptable manner.
[81] The Adjudicator concludes (in paragraph
40) that relocation to an area where there exists a sufficiency of protection
for the Appellant provides the answer to any claim the Appellant may have under
the Refugee Convention or ... Article 3 of the Human Rights Convention.
[82] In my view, the Adjudicator and the
Immigration Appeal Tribunal were entitled to reach the conclusions which they did.
Inadequate Reasons?
[83] In
my opinion, the reasoning of the Adjudicator and the Immigration Appeal
Tribunal was adequate.
[84] On
a fair reading, the Adjudicator's determination (No 6/2 of Process) leaves the informed
reader in no real doubt as to what the reasons for it were and what were the
material considerations which were taken into account in reaching it. That is sufficient to meet the Petitioner's
criticisms.
[85] Further
and in any event, alleged inadequacy of reasons was not a ground of appeal
included in the Petitioner's application to the IAT for permission to appeal. Nor does it feature in the present
petition.
[86] The
preliminary issue raised by Respondent (outlined above) is also fatal to Mr
Govier's new submission relating to inadequacy of reasons.
Conclusions
[87] In
essence, I agree with the submissions advanced by the respondent.
[88] I
am not persuaded that there is a sound point of law in the petitioner's favour.
[89] The
Adjudicator was entitled to come to the conclusion which he did.
[90] The
reasoning of the Adjudicator and the Immigration Appeal Tribunal was adequate.
[91] I
agree with the views expressed by HH Judge Ainley in the determination of the
IAT (No. 6/4 of process), namely;-
"The
grounds of appeal centre on an assertion that it would be unduly harsh for the
family to have to settle elsewhere than their home area in Albania. On
the facts found by the adjudicator, and I can see no obvious error in the way
he set about assessing the facts in this case, it would be a watering down of
the concept of undue hardship as developed in e.g. Karanakaran to hold that the real difficulties which this family
would face on return would be as severe as to cross that threshold. ... This
appeal has no real prospect of success."
[92] The
decision of the Immigration Appeal Tribunal was sound.
[93] I
am not satisfied that the Court should interfere with the decision of the Adjudicator
or of the Immigration Appeal Tribunal.
Decision
[94] I
have given careful and anxious consideration to the decisions under scrutiny in
this case and I have had regard to all the submissions advanced on behalf of
the petitioner.
[95] However,
for the reasons outlined above, I shall dismiss the Petition.
Further
submissions as to Remedy
[96] I should add that, after the case was taken to avizandum, the Respondent lodged a Note containing
further, written, submissions. The
Respondent sought to withdraw a concession as to what the appropriate remedy
should be in the event of my being persuaded to grant a remedy in favour of the
Petitioner. In response, the Petitioner
also lodged a Note of written submissions.
The Petitioner opposed the Respondent's written submissions and invited me
to grant the remedy sought.
[97] As I have not found in favour of the Petitioner the question of
remedy raised in the Notes of written submissions is not a live issue. If it had been, I would have put the case out
By Order to hear oral argument from both parties on the matters raised in their
Notes. In light of my decision on the
merits, however, that is not necessary.
[98] In the result I shall (a) sustain the
first plea in law for the Respondent, (b) repel the plea in law for the
Petitioner, and (c) dismiss the petition.
